Procedures for the Handling of Retaliation Complaints Under Section 219 of the Consumer Product Safety Improvement Act of 2008

[Federal Register Volume 77, Number 132 (Tuesday, July 10, 2012)]
[Rules and Regulations]
[Pages 40494-40509]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-16411]
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DEPARTMENT OF LABOR
Occupational Safety and Health Administration
29 CFR Part 1983
[Docket Number: OSHA-2010-0006]
RIN 1218-AC47
Procedures for the Handling of Retaliation Complaints Under
Section 219 of the Consumer Product Safety Improvement Act of 2008
AGENCY: Occupational Safety and Health Administration, Labor.
ACTION: Final rule.
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SUMMARY: This document provides the final text of regulations governing
the employee protection (whistleblower) provisions of the Consumer
Product Safety Improvement Act of 2008 (CPSIA). An interim final rule
governing these provisions and request for public comment was published
in the Federal Register on August 31, 2010. Three comments were
received. This rule responds to those comments and establishes the
final procedures and time frames for the handling of retaliation
complaints under CPSIA, including procedures and time frames for
employee complaints to the Occupational Safety and Health
Administration (OSHA), investigations by OSHA, appeals of OSHA
determinations to an administrative law judge (ALJ) for a hearing de
novo, hearings by ALJs, review of ALJ decisions by the Administrative
Review Board (ARB) (acting on behalf of the Secretary of Labor), and
judicial review of the Secretary's final decision.
DATES: This final rule is effective on July 10, 2012.
FOR FURTHER INFORMATION CONTACT: Sandra Dillon, Director, Office of the
Whistleblower Protection Program, Occupational Safety and Health
Administration, U.S. Department of Labor, Room N-3610, 200 Constitution
Avenue NW., Washington, DC 20210; telephone (202) 693-2199. This is not
a toll-free number. This Federal Register document is available in
alternative formats. The alternative formats available are large print,
electronic file on computer disk (Word Perfect, ASCII, Mates with
Duxbury Braille System) and audiotape.
SUPPLEMENTARY INFORMATION:
I. Background
The Consumer Product Safety Improvement Act of 2008 (CPSIA or the
Act), Public Law 110-314, 122 Stat. 3016, was enacted on August 14,
2008. Section 219 of the Act, codified at 15 U.S.C. 2087, provides
protection to employees against retaliation by a manufacturer, private
labeler, distributor, or retailer, because they provided to their
employer, the Federal Government or the attorney general of a state,
information relating to any violation of, or any act or omission the
employees reasonably believe to be a violation of, any provision of an
Act enforced by the Consumer Product Safety Commission (Commission), or
any order, rule, regulation, standard, or ban under any such Act. The
statutes enforced by the Commission include the Consumer Product Safety
Act (CPSA), as amended by the CPSIA (15 U.S.C. 2051 et seq.), the
Children's Gasoline Burn Prevention Act (Pub. L. 110-278, 122 Stat.
2602 (2008)), the Federal Hazardous Substances Act (15 U.S.C. 1261 et
seq.), the Flammable Fabrics Act (15 U.S.C. 1191 et seq.), the Poison
Prevention Packaging Act (15 U.S.C. 1471 et seq.), the Refrigerator
Safety Act (15 U.S.C. 1211 et seq.), and the Virginia Graeme Baker Pool
and Spa Safety Act (15 U.S.C. 8001 et seq.). These rules establish
procedures for the handling of whistleblower complaints under CPSIA.
II. Summary of Statutory Procedures
CPSIA's whistleblower provisions include procedures that allow a
covered employee to file, within 180 days of the alleged retaliation, a
complaint with the Secretary of Labor (Secretary).\1\ Upon receipt of
the complaint, the Secretary must provide written notice to the person
or persons named in the complaint alleged to have violated the Act
(respondent) of the filing of the complaint, the allegations contained
in the complaint, the substance of the evidence supporting the
complaint, and the rights afforded the respondent throughout the
investigation. The Secretary must then, within 60 days of receipt of
the complaint, afford the complainant and respondent an opportunity to
submit a response and meet with the investigator to present statements
from witnesses, and conduct an investigation.
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\1\ The regulatory provisions in this part have been written and
organized to be consistent with other whistleblower regulations
promulgated by OSHA to the extent possible within the bounds of the
statutory language of CPSIA. Responsibility for receiving and
investigating complaints under CPSIA also has been delegated to the
Assistant Secretary for Occupational Safety and Health (Secretary's
Order 1-2012 (Jan. 18, 2012), 77 FR 3912 (Jan. 25, 2012)). Hearings
on determinations by the Assistant Secretary are conducted by the
Office of Administrative Law Judges, and appeals from decisions by
ALJs are decided by the ARB (Secretary's Order 1-2010 (Jan. 15,
2010), 75 FR 3924 (Jan. 25, 2010)).
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The Secretary may conduct an investigation only if the complainant
has made a prima facie showing that the protected activity was a
contributing factor in the adverse action alleged in the complaint and
the respondent has not demonstrated, through clear and convincing
evidence, that the employer would have taken the same adverse action in
the absence of that activity.
After investigating a complaint, the Secretary will issue written
findings. If, as a result of the investigation, the Secretary finds
there is reasonable cause to believe that retaliation has occurred, the
Secretary must notify the respondent of those findings, along with a
preliminary order that requires the respondent to, where appropriate:
take affirmative action to abate the violation; reinstate the
complainant to his or her former position together with the
compensation of that position (including back pay) and restore the
terms, conditions, and privileges associated with his or her
employment; and provide compensatory damages to the complainant, as
well as all costs and expenses (including attorney fees and expert
witness fees) reasonably incurred by the complainant for, or in
connection with, the bringing of the complaint upon which the order was
issued.
The complainant and the respondent then have 30 days after the date
of the Secretary's notification in which to file objections to the
findings and/or preliminary order and request a hearing before an ALJ.
The filing of objections under CPSIA will stay any remedy in the
preliminary order except for preliminary reinstatement. If a hearing
before an ALJ is not requested within 30 days, the preliminary order
becomes final and is not subject to judicial review.
If a hearing is held, CPSIA requires the hearing to be conducted
"expeditiously." The Secretary then has 120 days after the conclusion
of any hearing in which to issue a final order, which may provide
appropriate relief or deny the complaint. Until the Secretary's final
order is issued, the Secretary, the complainant, and the respondent may
enter into a settlement agreement that terminates the proceeding. Where
the Secretary has determined that a violation has occurred, the
Secretary, where appropriate, will assess against the respondent a sum
equal to the total amount of all costs and expenses, including
attorney's and expert witness fees, reasonably incurred by the
complainant for, or in connection with, the bringing of the complaint
upon which the Secretary issued the order. The Secretary also may award
a prevailing employer a reasonable attorney's fee, not exceeding
$1,000, if the Secretary finds that the complaint is frivolous or has
been brought in bad faith.
Within 60 days of the issuance of the final order, any person
adversely affected or aggrieved by the Secretary's final order may file
an appeal with the United States Court of Appeals for the circuit in
which the violation occurred or the circuit where the complainant
resided on the date of the violation.
CPSIA permits the employee to seek de novo review of the complaint
by a United States district court in the event that the Secretary has
not issued a final decision within 210 days after the filing of the
complaint, or within 90 days after receiving a written determination.
The court will have jurisdiction over the action without regard to the
amount in controversy, and the case will be tried before a jury at the
request of either party.
III. Summary of Regulations and Rulemaking Proceedings
On August 31, 2010, OSHA published in the Federal Register an
interim final rule promulgating rules governing the employee protection
(whistleblower) provisions of CPSIA. 75 FR 53533. In addition to
promulgating the interim final rule, OSHA included a request for public
comment on the interim rules by November 1, 2010.
In response, two organizations and one individual filed comments
with the agency within the public comment period. Comments were
received from the National Whistleblower Center (NWC); Government
Accountability Project (GAP); and Todd Miller.
OSHA has reviewed and considered the comments. The following
discussion addresses the comments and OSHA's responses in the order of
the provisions of the rule.
General Comment
Mr. Todd Miller commented generally that the regulations do not
provide a means for redress where OSHA does not meet the timelines
provided for in the statute. Courts and the ARB have long recognized
that the statutory timelines provided in the whistleblower statutes are
directory. Failure to complete the investigation or issue a final
decision within the statutory time frame does not deprive the Secretary
of jurisdiction over a whistleblower complaint. See, e.g., Passaic
Valley Sewerage Comm'rs v. U.S. Dep't of Labor, 992 F.2d 474, 477 n.7
(3d Cir. 1993); Roadway Express, Inc. v. Dole, 929 F.2d 1060, 1066 (5th
Cir. 1991); Lewis v. Metropolitan Transp. Authority, New York, ARB No.
11-070, 2011 WL 3882486, at *2 (ARB Aug. 8, 2011); Welch v. Cardinal
Bankshares, ARB No. 04-054, 2004 WL 5030301 (ARB May 13, 2004). The
Secretary is cognizant of CPSIA's statutory directives regarding
completion of the OSHA investigation and administrative proceedings and
the need to resolve whistleblower complaints expeditiously. However, in
those instances where the agency cannot complete the administrative
proceedings within the statutory timeframes, CPSIA's "kick-out"
provision--which allows a complainant to file a complaint for de novo
review in Federal district court if the Secretary has not issued a
final decision within 210 days of the filing of the complaint, or
within 90 days of receiving a written determination--affords the
complainant an alternative avenue for resolution of the whistleblower
complaint.
Subpart A--Complaints, Investigations, Findings and Preliminary Orders
Section 1983.100 Purpose and Scope
This section describes the purpose of the regulations implementing
CPSIA and provides an overview of the procedures covered by these
regulations. No comments were received on this section and no
substantive changes were made to it.
Section 1983.101 Definitions
This section includes general definitions from CPSA, which are
applicable to the whistleblower provisions of CPSIA, including a
definition of the term "consumer product." See 15 U.S.C. 2052(a)(5).
The CPSA defines "distributor" as "a person to whom a consumer
product is delivered or sold for purposes of distribution in commerce,
except that such term does not include a manufacturer or retailer of
such product." 15 U.S.C. 2052(a)(8). The CPSA defines "manufactured"
as "to manufacture, produce, or assemble," and defines
"manufacturer" as "any person who manufactures or imports a consumer
product." 15 U.S.C. 2052(a)(10) and (11), respectively. "Private
labeler" is defined by the CPSA as "an owner of a brand or trademark
on the label of a consumer product which bears a private label." 15
U.S.C. 2052(a)(12)(A). Section 2052(a)(12)(B) further provides that a
"consumer product bears a private label if (i) The product (or its
container) is labeled with the brand or trademark of a person other
than a manufacturer of the product, (ii) the person with whose brand or
trademark the product (or container) is labeled has authorized or
caused the product to be so labeled, and (iii) the brand or trademark of a
manufacturer of such product does not appear on such label." 15 U.S.C.
2052(a)(12)(B). The CPSA defines "retailer" as "a person to whom a
consumer product is delivered or sold for purposes of sale or
distribution by such person to a consumer." 15 U.S.C. 2052(a)(13). No
comments were received on this section and no substantive changes were
made to the definitions section.
Section 1983.102 Obligations and Prohibited Acts
This section describes the activities that are protected under
CPSIA, and the conduct that is prohibited in response to any protected
activities. Under CPSIA, an employer may not retaliate against an
employee because the employee "provided, caused to be provided, or is
about to provide or cause to be provided to the employer, the Federal
Government, or the attorney general of a State information relating to
any violation of, or any act or omission the employee reasonably
believes to be a violation of any provision of [CPSA, as amended by
CPSIA] or any other Act enforced by the Commission, or any order, rule,
regulation, standard, or ban under any such Acts." 15 U.S.C.
2087(a)(1). CPSIA also protects employees who testify, assist or
participate in proceedings concerning such violations. 15 U.S.C.
2087(a)(2) and (3). Finally, CPSIA prohibits retaliation because an
employee "objected to, or refused to participate in, any activity,
policy, practice, or assigned task that the employee (or other such
person) reasonably believed to be in violation of any provision of
[CPSA, as amended by CPSIA] or any other Act enforced by the
Commission, or any order, rule, regulation, standard, or ban under any
such Acts." 15 U.S.C. 2087(a)(4).
In order to have a "reasonable belief" under CPSIA, a complainant
must have both a subjective, good faith belief and an objectively
reasonable belief that the complained-of conduct violates one of the
listed categories of law. See Sylvester v. Parexel Int'l LLC, ARB No.
07-123, 2011 WL 2165854, at *11-12 (ARB May 25, 2011) (discussing the
reasonable belief standard under analogous language in the Sarbanes-
Oxley Act (SOX) whistleblower provision, 18 U.S.C. 1514A). The
requirement that the complainant have a subjective, good faith belief
is satisfied so long as the complainant actually believed that the
conduct complained of violated the relevant law. See id. The
"reasonableness" of a complainant's belief is typically determined
"based on the knowledge available to a reasonable person in the same
factual circumstances with the same training and experience as the
aggrieved employee." Id. at *12 (internal quotation marks and citation
omitted). However, the complainant need not show that the conduct
complained of constituted an actual violation of law. Pursuant to this
standard, an employee's whistleblower activity is protected where it is
based on a reasonable, but mistaken, belief that a violation of the
relevant law has occurred. Id. at *13.
Section 1983.102(c) reflects the CPSIA mandate that anti-
retaliation protections are not available to employees who deliberately
cause a violation of any requirement relating to any violation or
alleged violation of any order, regulation, or standard under the Acts
enforced by the Commission. 15 U.S.C. 2087(b)(7)(D). For purposes of
section 1983.102(c), the ARB has interpreted the phrase "deliberate
violations" for the purpose of denying protection to an employee under
the Energy Reorganization Act's (ERA) similar provision as including an
element of willfulness. See Fields v. U.S. Dep't of Labor Admin. Review
Bd., 173 F.3d 811, 814 (11th Cir. 1999) (petitioners knowingly
conducted unauthorized and potentially dangerous experiments). No
comments were received on this section and no changes have been made to
it.
Section 1983.103 Filing of Retaliation Complaint
This section explains the requirements for filing a retaliation
complaint under CPSIA. To be timely, a complaint must be filed within
180 days of when the alleged violation occurs. Under Delaware State
College v. Ricks, 449 U.S. 250, 258 (1980), this is considered to be
when the retaliatory decision has been both made and communicated to
the complainant. In other words, the limitations period commences once
the employee is aware or reasonably should be aware of the employer's
decision. Equal Emp't Opportunity Comm'n v. United Parcel Serv., Inc.,
249 F.3d 557, 561-62 (6th Cir. 2001). Complaints filed under CPSIA need
not be in any particular form. They may be either oral or in writing.
If the complainant is unable to file the complaint in English, OSHA
will accept the complaint in any language. With the consent of the
employee, complaints may be filed by any person on the employee's
behalf.
OSHA notes that a complaint of retaliation filed with OSHA under
CPSIA is not a formal document and need not conform to the pleading
standards for complaints filed in federal district court articulated in
Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) and Ashcroft v.
Iqbal, 556 U.S. 662 (2009). See Sylvester v. Parexel Int'l, Inc., ARB
Case No. 07-123, 2011 WL 2165854, at *9-10 (ARB May 26, 2011) (holding
whistleblower complaints filed with OSHA under analogous provisions in
the Sarbanes-Oxley Act need not conform to federal court pleading
standards). Rather, the complaint filed with OSHA under this section
simply alerts the agency to the existence of the alleged retaliation
and the complainant's desire that the agency investigate the complaint.
Upon the filing of a complaint with OSHA, the Assistant Secretary is to
determine whether "the complaint, supplemented as appropriate by
interviews of the complainant" alleges "the existence of facts and
evidence to make a prima facie showing." 29 CFR 1983.104(e). As
explained in section 1983.104(e), if the complaint, supplemented as
appropriate, contains a prima facie allegation, and the respondent does
not show clear and convincing evidence that it would have taken the
same action in the absence of the alleged protected activity, OSHA
conducts an investigation to determine whether there is reasonable
cause to believe that retaliation has occurred. See 15 U.S.C.
2087(b)(2), 29 CFR 1983.104(e).
GAP expressed support for sections 1983.103(b) (nature of filing)
and (d) (time for filing) and commented that these sections improved
protection for whistleblowers. GAP also asked that the text of section
1983.103(d) clarify that the 180-day statute of limitations for filing
a complaint under CPSIA does not begin to run until an employee becomes
aware of an alleged discriminatory act. Consistent with the rules under
other whistleblower statutes administered by the agency, OSHA has
clarified in section 1983.103(d) that the statute of limitations under
CPSIA may be tolled for reasons warranted by applicable case law and
made other minor clarifying changes.
Section 1983.104 Investigation
This section describes the procedures that apply to the
investigation of complaints under CPSIA. Paragraph (a) of this section
outlines the procedures for notifying the parties and the Consumer
Product Safety Commission of the complaint and notifying the respondent
of its rights under these regulations. Paragraph (b) describes the
procedures for the respondent to submit its response to the complaint.
Paragraph (c) specifies that throughout the investigation the agency
will provide to the complainant (or the complainant's
legal counsel if the complainant is represented by counsel) a copy of
respondent's submissions to the agency that are responsive to the
complainant's whistleblower complaint and the complainant will have an
opportunity to respond to those submissions. Before providing such
materials to the complainant, the agency will redact them in accordance
with the Privacy Act of 1974, 5 U.S.C. 552a, and other applicable
confidentiality laws. Paragraph (d) of this section discusses
confidentiality of information provided during investigations.
Paragraph (e) of this section sets forth CPSIA's statutory burdens of
proof. Paragraph (f) describes the procedures the Assistant Secretary
will follow prior to the issuance of findings and a preliminary order
when the Assistant Secretary has reasonable cause to believe that a
violation has occurred.
The statute requires that a complainant make an initial prima facie
showing that protected activity was "a contributing factor" in the
adverse action alleged in the complaint, i.e., that the protected
activity, alone or in combination with other factors, affected in some
way the outcome of the employer's decision. The complainant will be
considered to have met the required burden if the complaint on its
face, supplemented as appropriate through interviews of the
complainant, alleges the existence of facts and either direct or
circumstantial evidence to meet the required showing. The complainant's
burden may be satisfied, for example, if he or she shows that the
adverse action took place shortly after protected activity, giving rise
to the inference that it was a contributing factor in the adverse
action.
If the complainant does not make the required prima facie showing,
the investigation must be discontinued and the complaint dismissed. See
Trimmer v. U.S. Dep't of Labor, 174 F.3d 1098, 1101 (10th Cir. 1999)
(noting that the burden-shifting framework of the ERA, which is the
same as that under CPSIA, serves a "gatekeeping function" that
"stem[s] frivolous complaints"). Even in cases where the complainant
successfully makes a prima facie showing, the investigation must be
discontinued if the employer demonstrates, by clear and convincing
evidence, that it would have taken the same adverse action in the
absence of the protected activity. Thus, OSHA must dismiss a complaint
under CPSIA and not investigate (or cease investigating) if either: (1)
The complainant fails to meet the prima facie showing that protected
activity was a contributing factor in the adverse action; or (2) the
employer rebuts that showing by clear and convincing evidence that it
would have taken the same adverse action absent the protected activity.
Assuming that an investigation proceeds beyond the gatekeeping
phase, the statutory burdens of proof require an employee to prove that
the alleged protected activity was a "contributing factor" in the
alleged adverse action. If the employee proves that the alleged
protected activity was a contributing factor in the adverse action, the
employer, to escape liability, must prove by "clear and convincing
evidence" that it would have taken the same action in the absence of
the protected activity. A contributing factor is "any factor which,
alone or in connection with other factors, tends to affect in any way
the outcome of the decision." Marano v. Dep't of Justice, 2 F.3d 1137,
1140 (Fed. Cir. 1993) (internal quotation marks, emphasis and citation
omitted) (discussing the Whistleblower Protection Act, 5 U.S.C.
1221(e)(1)). In proving that protected activity was a contributing
factor in the adverse action, "'a complainant need not necessarily
prove that the respondent's articulated reason was a pretext in order
to prevail,"' because a complainant alternatively can prevail by
showing that the respondent's "'reason, while true, is only one of the
reasons for its conduct,"' and that another reason was the
complainant's protected activity. See Klopfenstein v. PCC Flow Techs.
Holdings, Inc., ARB No. 04-149, 2006 WL 3246904, at *13 (ARB May 31,
2006) (quoting Rachid v. Jack in the Box, Inc., 376 F.3d 305, 312 (5th
Cir. 2004)) (discussing contributing factor test under the SOX
whistleblower provision), aff'd sub nom. Klopfenstein v. Admin. Review
Bd., U.S. Dep't of Labor, 402 F. App'x 936, 2010 WL 4746668 (5th Cir.
2010).
CPSIA's burdens of proof do not address the evidentiary standard
that applies to a complainant's proof that protected activity was a
contributing factor in an adverse action. CPSIA simply provides that
the Secretary may find a violation only "if the complainant
demonstrates" that protected activity was a contributing factor in the
alleged adverse action. See 15 U.S.C. 2087(b)(2)(B)(iii). It is the
Secretary's position that the complainant must prove by a
"preponderance of the evidence" that his or her protected activity
contributed to the adverse action; otherwise the burden never shifts to
the employer to establish its defense by "clear and convincing
evidence." See, e.g., Allen v. Admin. Review Bd., 514 F.3d 468, 475
n.1 (5th Cir. 2008) ("The term `demonstrates' [under identical
language in another whistleblower provision] means to prove by a
preponderance of the evidence."). Once the complainant establishes
that the protected activity was a contributing factor in the adverse
action, the employer can escape liability only by proving by clear and
convincing evidence that it would have taken the same action even in
the absence of the prohibited rationale. The "clear and convincing
evidence" standard is a higher burden of proof than a "preponderance
of the evidence" standard.
NWC and GAP commented on the provisions in section 1983.104. NWC
suggested that the phrase "other applicable confidentiality laws" be
replaced with more specific language describing the confidentiality
laws that might apply to a respondent's answer. NWC also suggested that
OSHA provide a copy of the response to the complainant, and give the
complainant an opportunity to respond. NWC noted that to conduct a full
and fair investigation, OSHA needs to obtain the available, responsive
information from both parties. If one party does not have the
information submitted by the other, NWC explained, that party cannot
help the investigation by providing available information to shed light
on the matter.
GAP commented that while it was pleased with the provisions in
Sec. 1983.104 providing copies of respondent's submissions to
complainants and protecting witness confidentiality, it was concerned
that the procedures under Sec. 1983.104(f) "disenfranchise[d] the
victim, giving only one side of the dispute the chance to participate
in the most significant step of the process" and that "[a]t a
minimum, this procedural favoritism means there will not be an even
playing field in the administrative hearing." GAP advocated removing
Sec. 1983.104(f).
OSHA agrees with NWC and GAP that the input of both parties in the
investigation is important to ensuring that OSHA reaches the proper
outcome during its investigation. To that end, in response to the
comments, the procedures under CPSIA have been revised to contain the
following safeguards aimed at ensuring that complainants and
respondents have equal access to information during the course of the
OSHA investigation:
Section 1983.104(a) has been revised to more closely
mirror CPSIA's statutory requirement in 15 U.S.C. 2087(b)(1), that
after receiving a complaint, the Secretary shall notify the respondent
of the filing of the complaint, of the allegations contained
in the complaint, and of the substance of the evidence supporting the
complaint.
Section 1983.104(b) of the final rule has been revised to
implement CPSIA's statutory requirement in 15 U.S.C. 2087(b)(2), that
after receiving a complaint, the Secretary shall afford the
complainant, as well as the respondent, the opportunity to submit a
written response to the complaint, meet with a representative of the
Secretary and present statements from witnesses;
Section 1983.104(c) continues to provide that, throughout
the investigation, the agency will provide the complainant (or the
complainant's legal counsel if the complainant is represented by
counsel) a copy of all of respondent's submissions to the agency that
are responsive to the complainant's whistleblower complaint, redacted
of confidential information as necessary. The final rule also specifies
that the complainant will have an opportunity to respond to such
submissions; and
Section 1983.104(f) of the final rule provides that the
complainant will also receive a copy of the materials that must be
provided to the respondent under that paragraph.
Regarding NWC's suggestion that OSHA provide more specific
information about the confidentiality laws that may protect portions of
the information submitted by a respondent, OSHA anticipates that the
vast majority of respondent submissions will not be subject to any
confidentiality laws. However, in addition to the Privacy Act, a
variety of confidentiality provisions may protect information submitted
during the course of an investigation. For example, a respondent may
submit information that the respondent identifies as confidential
commercial or financial information exempt from disclosure under the
Freedom of Information Act (FOIA). OSHA's procedures for handling
information identified as confidential during an investigation are
explained in OSHA's Whistleblower Investigations Manual available at:
http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=DIRECTIVES&p_id=5061.
With regard to GAP's comment that Sec. 1983.104(f) should be
removed, OSHA notes that the purpose of Sec. 1983.104(f) is to ensure
compliance with the Supreme Court's ruling in Brock v. Roadway Express,
481 U.S. 252, 264 (1987). In that decision, the Court upheld the facial
constitutionality of the analogous provisions providing for preliminary
reinstatement under the Surface Transportation Assistance Act (STAA),
49 U.S.C. 31105, and the procedures adopted by OSHA to protect the
respondent's rights under the Due Process Clause of the Fifth
Amendment, but ruled that the record failed to show that OSHA
investigators had informed the respondent of the substance of the
evidence to support reinstatement of the discharged employee. In so
finding, the Court noted that, although a formal hearing was not
required before OSHA ordered preliminary reinstatement, "minimum due
process for the employer in this context requires notice of the
employee's allegations, notice of the substance of the relevant
supporting evidence, an opportunity to submit a written response, and
an opportunity to meet with the investigator and present statements
from rebuttal witnesses." Roadway Express, 481 U.S. at 264; see
Bechtel v. Competitive Techs, Inc., 448 F.3d 469, 480-81 (Leval, J.
concurring in the judgment) (finding OSHA's preliminary reinstatement
order under SOX unenforceable because the information provided to the
respondent did not meet the requirements of Roadway Express). Thus,
OSHA declines to remove the language providing the respondent notice
and opportunity to respond under Sec. 1983.104(f).
Nonetheless, while recognizing that the purpose of Sec.
1983.104(f) is to ensure that the respondent's Due Process rights have
been met prior to OSHA ordering preliminary reinstatement, OSHA
appreciates that complainants wish to stay informed regarding their
case and may continue to have valuable input, even at this late stage
in the investigation. Thus, under these rules, OSHA will provide
complainants with a copy of the materials sent to the respondent under
Sec. 1983.104(f).
In addition to the revisions noted above, minor changes were made
as needed in this section to clarify the provision without changing its
meaning.
Section 1983.105 Issuance of Findings and Preliminary Orders
This section provides that, on the basis of information obtained in
the investigation, the Assistant Secretary will issue, within 60 days
of the filing of a complaint, written findings regarding whether or not
there is reasonable cause to believe that the complaint has merit. If
the findings are that there is reasonable cause to believe that the
complaint has merit, the Assistant Secretary will order appropriate
relief, including preliminary reinstatement, affirmative action to
abate the violation, back pay with interest, and compensatory damages.
To reflect the agency's current practice, wherein a preliminary order
that includes compensation will include, where appropriate, back pay
and interest, the phrase "and interest" was added to this section.
In ordering interest on back pay under CPSIA, the Secretary has
determined that interest due will be computed by compounding daily the
Internal Revenue Service interest rate for the underpayment of taxes,
which under 26 U.S.C. 6621, is generally the Federal short-term rate
plus three percentage points. The Secretary believes that daily
compounding of interest achieves the make-whole purpose of a back pay
award. Daily compounding of interest has become the norm in private
lending and recently was found to be the most appropriate method of
calculating interest on back pay by the National Labor Relations Board.
See Jackson Hosp. Corp. v. United Steel, Paper & Forestry, Rubber,
Mfg., Energy, Allied Indus. & Serv. Workers Int'l Union, 356 NLRB No.
8, 2010 WL 4318371, at *3-4 (NLRB Oct. 22, 2010). Additionally,
interest on tax underpayments under the Internal Revenue Code, 26
U.S.C. 6621, is compounded daily pursuant to 26 U.S.C. 6622(a).
The findings and, where appropriate, preliminary order, advise the
parties of their right to file objections to the findings of the
Assistant Secretary and to request a hearing. The findings and, where
appropriate, preliminary order, also advise the respondent of the right
to request an award of attorney's fees not exceeding $1,000 from the
ALJ, regardless of whether the respondent has filed objections, if the
respondent alleges that the complaint was frivolous or brought in bad
faith. If no objections are filed within 30 days of receipt of the
findings, the findings and any preliminary order of the Assistant
Secretary become the final decision and order of the Secretary. If
objections are timely filed, any order of preliminary reinstatement
will take effect, but the remaining provisions of the order will not
take effect until administrative proceedings are completed.
In appropriate circumstances, in lieu of preliminary reinstatement,
OSHA may order that the complainant receive the same pay and benefits
that he or she received prior to his termination, but not actually
return to work. Such "economic reinstatement" is akin to an order for
front pay and frequently is employed in cases arising under Section
105(c) of the Federal Mine Safety and Health Act of 1977, which
protects miners from retaliation. 30 U.S.C. 815(c); See, e.g., Sec'y of
Labor ex rel of York v. BR&D Enters., Inc., 23 FMSHRC 697, 2001 WL
1806020, at *1 (FMSHRC June 26, 2001). Front pay has been recognized as
a possible remedy in cases under the whistleblower statutes enforced by
OSHA in circumstances where reinstatement would not be appropriate.
See, e.g., Moder v. Vill. of Jackson, ARB Nos. 01-095, 02-039, 2003 WL
21499864, at *10 (ARB June 30, 2003)
(under environmental whistleblower statutes, "front pay may
be an appropriate substitute when the parties prove the impossibility
of a productive and amicable working relationship, or the company no
longer has a position for which the complainant is qualified."); Hobby
v. Georgia Power Co., ARB No. 98-166, ALJ No. 1990-ERA-30 (ARB Feb. 9,
2001), aff'd sub nom. Hobby v. U.S. Dep't of Labor, No. 01-10916 (11th
Cir. Sept. 30, 2002) (unpublished) (noting circumstances where front
pay may be available in lieu of reinstatement but ordering
reinstatement); Doyle v. Hydro Nuclear Servs., ARB Nos. 99-041, 99-042,
00-012, 1996 WL 518592, at *6 (ARB Sept. 6, 1996) (under ERA, front pay
appropriate where employer had eliminated the employee's position);
Michaud v. BSP Transport, Inc., ARB Nos. 97-113, 1997 WL 626849, at *4
(ARB Oct. 9, 1997) (under STAA, front pay appropriate where employee
was unable to work due to major depression resulting from the
retaliation); Brown v. Lockheed Martin Corp., ALJ No. 2008-SOX-49, 2010
WL 2054426, at *55-56 (ALJ Jan. 15, 2010) (noting that while
reinstatement is the "presumptive remedy" under Sarbanes-Oxley, front
pay may be awarded as a substitute when reinstatement is
inappropriate). Congress intended that employees be preliminarily
reinstated to their positions if OSHA finds reasonable cause to believe
that they were discharged in violation of CPSIA. When a violation is
found, the norm is for OSHA to order immediate preliminary
reinstatement. Neither an employer nor an employee has a statutory
right to choose economic reinstatement. Rather, economic reinstatement
is designed to accommodate situations in which evidence establishes to
OSHA's satisfaction that reinstatement is inadvisable for some reason,
notwithstanding the employer's retaliatory discharge of the employee.
In such situations, actual reinstatement might be delayed until after
the administrative adjudication is completed as long as the employee
continues to receive his or her pay and benefits and is not otherwise
disadvantaged by a delay in reinstatement. There is no statutory basis
for allowing the employer to recover the costs of economically
reinstating an employee should the employer ultimately prevail in the
whistleblower adjudication. No comments were received on this section.
In addition to the revisions noted above, which clarify the provision
of interest on back pay awards, minor changes were made as needed to
clarify the provision without changing its meaning.
Subpart B--Litigation
Section 1983.106 Objections to the Findings and the Preliminary Order
and Requests for a Hearing
To be effective, objections to the findings of the Assistant
Secretary must be in writing and must be filed with the Chief
Administrative Law Judge, U.S. Department of Labor, within 30 days of
receipt of the findings. The date of the postmark, facsimile
transmittal, or electronic communication transmittal is considered the
date of the filing; if the objection is filed in person, by hand-
delivery or other means, the objection is filed upon receipt. The
filing of objections also is considered a request for a hearing before
an ALJ. Although the parties are directed to serve a copy of their
objections on the other parties of record, as well as the OSHA official
who issued the findings and order, the Assistant Secretary, and the
U.S. Department of Labor's Associate Solicitor for Fair Labor
Standards, the failure to serve copies of the objections on the other
parties of record does not affect the ALJ's jurisdiction to hear and
decide the merits of the case. See Shirani v. Calvert Cliffs Nuclear
Power Plant, Inc., ARB No. 04-101, 2005 WL 2865915, at *7 (ARB Oct. 31,
2005).
The timely filing of objections stays all provisions of the
preliminary order, except for the portion requiring reinstatement. A
respondent may file a motion to stay OSHA's preliminary order of
reinstatement with the Office of Administrative Law Judges. However,
such a motion will be granted only based on exceptional circumstances.
Language was added to paragraph (b) of this section to make this point
clear. The Secretary believes that a stay of the Assistant Secretary's
preliminary order of reinstatement under CPSIA would be appropriate
only where the respondent can establish the necessary criteria for
equitable injunctive relief, i.e., irreparable injury, likelihood of
success on the merits, a balancing of possible harms to the parties,
and the public interest favors a stay. If no timely objection to OSHA's
findings and/or preliminary order is filed, then OSHA's findings and/or
preliminary order become the final decision of the Secretary not
subject to judicial review.
No comments were received on this section. The term "electronic
communication transmittal" was substituted for "email communication"
and other minor changes were made as needed to clarify the provision
without changing its meaning.
Section 1983.107 Hearings
This section adopts the rules of practice and procedure for
administrative hearings before the Office of Administrative Law Judges
at 29 CFR part 18 subpart A. It specifically provides for hearings to
be consolidated where both the complainant and respondent object to the
findings and/or order of the Assistant Secretary. This section further
provides that the hearing is to commence expeditiously, except upon a
showing of good cause or unless otherwise agreed to by the parties.
Hearings will be conducted de novo, on the record.
In a revision from the interim final rule, paragraph (b) now notes
the broad authority of ALJs to limit discovery in order to expedite the
hearing. This change was made for consistency with OSHA's rules under
other whistleblower statutes, which similarly note that the ALJ has
broad authority to limit discovery. See, e.g., 29 CFR 1979.107
(regulations under the Wendell H. Ford Aviation Investment and Reform
Act for the 21st Century (AIR21)); 29 CFR 1980.107 (SOX). As with other
whistleblower statutes administered by OSHA, CPSIA dictates that
hearings "shall be conducted expeditiously" and allows complainants
to seek de novo review of the complaint in federal court if the
Secretary has not issued a final decision within 210 days after the
filing of the complaint, or within 90 days after receiving a written
determination. See 15 U.S.C. 2087(b)(2) and (4). The ALJ's broad
discretion to limit discovery, for example by limiting the number of
interrogatories, requests for production of documents, or depositions
allowed, furthers Congress' intent to provide for expeditious hearings
under CPSIA.
Finally, this section has been revised to add paragraph (d), which
specifies that the formal rules of evidence will not apply to
proceedings before an ALJ under Sec. 1983.107, but rules or principles
designed to assure the production of the most probative evidence will
be applied. The Department has taken the same approach under the other
whistleblower statutes administered by OSHA. See, e.g., 29 CFR 1979.107
(AIR21); 29 CFR 1980.107 (SOX). This approach is also consistent with
the Administrative Procedure Act, which provides: "Any oral or
documentary evidence may be received, but the agency as a matter of
policy shall provide for the exclusion of irrelevant, immaterial, or unduly
repetitious evidence * * *" 5 U.S.C. 556(d); see also Fed. Trade
Comm'n v. Cement Inst., 333 U.S. 683, 805-06 (1948) (administrative
agencies not restricted by rigid rules of evidence). The Department
believes that it is inappropriate to apply the rules of evidence at 29
CFR part 18 subpart B because whistleblowers often appear pro se and
may be disadvantaged by strict adherence to formal rules of evidence.
Furthermore, hearsay evidence is often appropriate in whistleblower
cases, as there often are no relevant documents or witnesses other than
hearsay to prove discriminatory intent. ALJs have the responsibility to
determine the appropriate weight to be given such evidence. For these
reasons, the interests of determining all of the relevant facts are
best served by not requiring strict evidentiary rules. No comments were
received on this section, but, as explained above, this section was
revised to specify that the formal rules of evidence will not apply to
proceedings before an ALJ under this section.
Section 1983.108 Role of Federal Agencies
The Assistant Secretary, at his or her discretion, may participate
as a party or amicus curiae at any time in the administrative
proceedings under CPSIA. For example, the Assistant Secretary may
exercise his or her discretion to prosecute the case in the
administrative proceeding before an ALJ; petition for review of a
decision of an ALJ, including a decision based on a settlement
agreement between the complainant and the respondent, regardless of
whether the Assistant Secretary participated before the ALJ; or
participate as amicus curiae before the ALJ or in the ARB proceeding.
Although OSHA anticipates that ordinarily the Assistant Secretary will
not participate, the Assistant Secretary may choose to do so in
appropriate cases, such as cases involving important or novel legal
issues, large numbers of employees, alleged violations that appear
egregious, or where the interests of justice might require
participation by the Assistant Secretary. The Consumer Product Safety
Commission, if interested in a proceeding, also may participate as
amicus curiae at any time in the proceedings. No comments were received
on this section; however, it has been revised to specify that documents
need not be sent to the Assistant Secretary or the Department of
Labor's Associate Solicitor for Fair Labor Standards unless the
Assistant Secretary requests that documents be sent, the Assistant
Secretary is participating in the proceeding, or service on the
Assistant Secretary is otherwise required by these rules. Other minor
changes were made as needed to clarify the provision without changing
its meaning.
Section 1983.109 Decision and Orders of the Administrative Law Judge
This section sets forth the requirements for the content of the
decision and order of the ALJ, and includes the standard for finding a
violation under CPSIA. The section further provides that the Assistant
Secretary's determination to dismiss the complaint without an
investigation or without a complete investigation pursuant to Sec.
1983.104 is not subject to review. Thus, paragraph (c) of Sec.
1983.109 clarifies that the Assistant Secretary's determinations on
whether to proceed with an investigation under CPSIA and whether to
make particular investigative findings are discretionary decisions not
subject to review by the ALJ. The ALJ hears cases de novo and,
therefore, as a general matter, may not remand cases to the Assistant
Secretary to conduct an investigation or make further factual findings.
A full discussion of the burdens of proof used by the Department of
Labor to resolve whistleblower cases under this part is described above
in the discussion of Sec. 1983.104. Paragraph (d) notes the remedies
that the ALJ may order under CPSIA and, as discussed under Sec.
1983.105 above, provides that interest on back pay will be calculated
using the interest rate applicable to underpayment of taxes under 26
U.S.C. 6621, and will be compounded daily. Paragraph (e) requires that
the ALJ's decision be served on all parties to the proceeding, the
Assistant Secretary, and the U.S. Department of Labor's Associate
Solicitor for Fair Labor Standards. Paragraph (e) also provides that
any ALJ decision requiring reinstatement or lifting an order of
reinstatement by the Assistant Secretary will be effective immediately
upon receipt of the decision by the respondent. All other portions of
the ALJ's order will be effective 14 days after the date of the
decision unless a timely petition for review has been filed with the
ARB.
No comments were received on this section. However, minor
modifications were made to the description of the remedies available
under CPSIA in this paragraph to more closely match the language
regarding remedies in the statute and the description of the remedies
in Sec. 1983.105(a)(1). The statement that the decision of the ALJ
will become the final order of the Secretary unless a petition for
review is timely filed with the ARB and the ARB accepts the petition
for review was deleted from Sec. 1983.110(a) and moved to paragraph
(e) of this section. Additionally, OSHA has revised the period for
filing a timely petition for review with the ARB to 14 days rather than
10 business days. With this change, the final rule expresses the time
for a petition for review in a way that is consistent with the other
deadlines for filings before the ALJs and the ARB in the rule, which
are also expressed in days rather than business days. This change also
makes the final rule congruent with the 2009 amendments to Rule 6(a) of
the Federal Rules of Civil Procedure and Rule 26(a) of the Federal
Rules of Appellate Procedure, which govern computation of time before
those tribunals and express filing deadlines as days rather than
business days. Accordingly, the ALJ's order will become the final order
of the Secretary 14 days after the date of the decision, rather than
after 10 business days, unless a timely petition for review is filed.
As a practical matter, this revision does not substantively alter the
window of time for filing a petition for review before the ALJ's order
becomes final.
Section 1983.110 Decision and Orders of the Administrative Review Board
Upon the issuance of the ALJ's decision, the parties have 14 days
within which to petition the ARB for review of that decision. If no
timely petition for review is filed with the ARB, the decision of the
ALJ becomes the final decision of the Secretary and is not subject to
judicial review. The date of the postmark, facsimile transmittal, or
electronic communication transmittal is considered the date of filing
of the petition; if the petition is filed in person, by hand-delivery
or other means, the petition is considered filed upon receipt.
The appeal provisions in this part provide that an appeal to the
ARB is not a matter of right but is accepted at the discretion of the
ARB. The parties should identify in their petitions for review the
legal conclusions or orders to which they object, or the objections may
be deemed waived. The ARB has 30 days to decide whether to grant the
petition for review. If the ARB does not grant the petition, the
decision of the ALJ becomes the final decision of the Secretary. If a
timely petition for review is filed with the ARB, any relief ordered
by the ALJ, except for that portion ordering reinstatement, is
inoperative while the matter is pending before the ARB. When the ARB
accepts a petition for review, the ALJ's factual determinations will be
reviewed under the substantial evidence standard. In order to be
consistent with the practices and procedures followed in OSHA's other
whistleblower programs, and to provide further clarification of the
regulatory text, OSHA has modified the language of 1983.110(c), to
clarify when the ALJ proceedings conclude and when the final decision
of the ARB will be issued.
This section also provides that, based on exceptional
circumstances, the ARB may grant a motion to stay an ALJ's preliminary
order of reinstatement under CPSIA, which otherwise would be effective,
while review is conducted by the ARB. The Secretary believes that a
stay of an ALJ's preliminary order of reinstatement under CPSIA would
be appropriate only where the respondent can establish the necessary
criteria for equitable injunctive relief, i.e., irreparable injury,
likelihood of success on the merits, a balancing of possible harms to
the parties, and the public interest favors a stay.
If the ARB concludes that the respondent has violated the law, it
will issue a final order providing relief to the complainant. The final
order will require, where appropriate: Affirmative action to abate the
violation; reinstatement of the complainant to his or her former
position, together with the compensation (including back pay and
interest), terms, conditions, and privileges of the complainant's
employment; and payment of compensatory damages, including, at the
request of the complainant, the aggregate amount of all costs and
expenses (including attorney's and expert witness fees) reasonably
incurred. Interest on back pay will be calculated using the interest
rate applicable to underpayment of taxes under 26 U.S.C. 6621, and will
be compounded daily. If the ARB determines that the respondent has not
violated the law, an order will be issued denying the complaint. If,
upon the request of the respondent, the ARB determines that a complaint
was frivolous or was brought in bad faith, the ARB may award to the
respondent a reasonable attorney's fee, not exceeding $1,000.
With regard to section 1983.110(a), NWC urged deletion of the
provision in the interim final rule that "[a]ny exception not
specifically urged will ordinarily be deemed waived by the parties."
NWC commented that parties should be allowed to add additional grounds
for review in subsequent briefs and that allowing parties to do so
would further the goal of deciding cases on the merits. OSHA's
inclusion of this provision is not intended to limit the circumstances
in which parties can add additional grounds for review as a case
progresses before the ARB; rather, the rules include this provision to
put the public on notice of the possible consequences of failing to
specify the basis of an appeal to the ARB. OSHA recognizes that while
the ARB has held in some instances that an exception not specifically
urged may be deemed waived, the ARB also has found that the rules
provide for exceptions to this general rule. See, e.g., Furland v.
American Airlines, Inc., ARB Nos. 09-102, 10-130, 2011 WL 3413364, at
*7, n.5 (ARB July 27, 2011), petition for review filed, (11th Cir. Oct.
3, 2011) (No. 11-14419-C) (where complainant consistently made an
argument throughout the administrative proceedings the argument was not
waived simply because it appeared in complainant's reply brief to the
ARB rather than in the petition for review); Avlon v. American Express
Co., ARB No. 09-089, 2011 WL 4915756, at *4, *5 n.1 (ARB Sept. 14,
2011) (consideration of an argument not specifically raised in
complainant's petition for review is within the authority of the ARB,
and parallel provisions in the SOX whistleblower regulations do not
mandate the ARB limit its review to ALJ conclusions assigned as error
in the petition for review). However, recognizing that the interim
final rule may have suggested too stringent a standard, OSHA has
replaced the phrase "ordinarily will" with "may."
NWC also suggested that the review period be extended from 10
business days to 30 days to make this section parallel to the provision
in Sec. 1983.105(c), which allows for 30 days within which to file an
objection. OSHA declines to extend the review period to 30 days because
the shorter review period is consistent with the practices and
procedures followed in OSHA's other whistleblower programs.
Furthermore, parties may file a motion for extension of time to appeal
an ALJ's decision, and the ARB has discretion to grant such extensions.
However, as explained above, OSHA has revised the period to petition
for review of an ALJ decision to 14 days rather than 10 business days.
As a practical matter, this revision does not substantively alter the
window of time for filing a petition for review before the ALJ's order
becomes final.
Similarly, section 1983.110(c), which provides that the ARB will
issue a final decision within 120 days of the conclusion of the ALJ
hearing, was similarly revised to state that the conclusion of the ALJ
hearing will be deemed to be 14 days after the date of the decision of
the ALJ, rather than after 10 business days, unless a motion for
reconsideration has been filed with the ALJ in the interim. Like the
revision to section 1983.110(a), this revision does not substantively
alter the length of time before the ALJ hearing will be deemed to have
been concluded.
In addition to the changes noted above, OSHA has revised this
section slightly to clarify that interest on back pay awards will be
compounded daily and to make several minor changes to clarify the
provision and more closely mirror the language used in the statute.
Subpart C--Miscellaneous Provisions
Section 1983.111 Withdrawal of Complaints, Findings, Objections, and
Petitions for Review; Settlement
This section provides the procedures and time periods for
withdrawal of complaints, the withdrawal of findings and/or preliminary
orders by the Assistant Secretary, and the withdrawal of objections to
findings and/or orders. It also provides for approval of settlements at
the investigative and adjudicative stages of the case. No comments were
received on this section.
The final rule adopts a revision to Sec. 1983.111(a) that permits
complainants to withdraw their complaints orally. In such
circumstances, OSHA will, in writing, confirm a complainant's desire to
withdraw. This revision will reduce burdens on complainants who no
longer want to pursue their claims. Other minor changes were made as
needed to clarify the provision without changing its meaning.
Section 1983.112 Judicial Review
This section describes the statutory provisions for judicial review
of decisions of the Secretary and requires, in cases where judicial
review is sought, the ALJ or the ARB to submit the record of
proceedings to the appropriate court pursuant to the rules of such
court. No comments were received on this section.
Section 1983.113 Judicial Enforcement
This section describes the Secretary's authority under CPSIA to
obtain judicial enforcement of orders and the terms of settlement
agreements. CPSIA expressly authorizes district courts to enforce
orders, including preliminary orders of reinstatement, issued by the
Secretary under 15 U.S.C. 2087(b)(6). "Whenever
any person has failed to comply with an order issued under paragraph
(3), the Secretary may file a civil action in the United States
district court for the district in which the violation was found to
occur, or in the United States district court for the District of
Columbia, to enforce such order." Specifically, reinstatement orders
issued at the close of OSHA's investigation under 15 U.S.C.
2087(b)(2)(A) are immediately enforceable in district court pursuant to
15 U.S.C. 2087(b)(6) and (7). Section 2087(b)(3)(B)(ii) provides that
the Secretary shall order the person who has committed a violation to
reinstate the complainant to his or her former position. Section
2087(b)(2)(A) instructs the Secretary to accompany any reasonable cause
finding that a violation occurred with a preliminary order containing
the relief prescribed by subsection (b)(3)(B), which includes
reinstatement where appropriate, and provides that any preliminary
order of reinstatement shall not be stayed upon the filing of
objections. See 15 U.S.C. 2087(b)(2)(A) ("The filing of such
objections shall not operate to stay any reinstatement remedy contained
in the preliminary order."). Thus, under the statute, enforceable
orders include preliminary orders that contain the relief of
reinstatement prescribed by subsection (b)(3)(B). This statutory
interpretation is consistent with the Secretary's interpretation of
similar language in AIR21 and SOX. See Brief for the Intervenor/
Plaintiff-Appellee Secretary of Labor, Solis v. Tenn. Commerce Bancorp,
Inc., No. 10-5602 (6th Cir. 2010); Solis v. Tenn. Commerce Bancorp,
Inc., 713 F. Supp. 2d 701 (M.D. Tenn. 2010); But see Bechtel, 448 F.3d
469; Welch v. Cardinal Bankshares Corp., 454 F. Supp. 2d 552 (W.D. Va.
2006) (decision vacated, appeal dismissed, No. 06-2295 (4th Cir. Feb.
20, 2008)). CPSIA also permits the person on whose behalf the order was
issued to obtain judicial enforcement of the order. See 15 U.S.C.
2087(b)(7). No comments were received on this section. The final rule
simplifies language in the first sentence and adds a sentence noting
that, in accordance with the statute, 15 U.S.C. 2087(b)(6), the
Secretary may file civil actions seeking enforcement of orders in the
United States District Court for the District of Columbia as well as in
the district court for the district in which the violation occurred.
Section 1983.114 District Court Jurisdiction of Retaliation Complaints
This section sets forth provisions that allow a complainant to
bring an original de novo action in district court under certain
circumstances. OSHA has revised paragraph (a) of this section to more
clearly explain the circumstances in which the complainant may file a
complaint in district court and to incorporate the statutory provision
allowing a jury trial at the request of either party in a district
court action under CPSIA.
Under CPSIA, a complainant may bring an original de novo action in
district court alleging the same allegations contained in the complaint
filed with OSHA, if there has been no final decision of the Secretary
within 210 days of the filing of the complaint, or within 90 days after
receiving a written determination. "Written determination" refers to
the Assistant Secretary's written findings under Sec. 1983.105(a). See
15 U.S.C. 2087(b)(4). The Secretary's final decision is generally the
decision of the ARB issued under Sec. 1983.110. In other words, a
complainant may file an action for de novo review in the appropriate
district court in either of the following two circumstances: (1) A
complainant may file a de novo action in district court within 90 days
of receiving the Assistant Secretary's written findings issued under
Sec. 1983.105(a), or (2) a complainant may file a de novo action in
district court if more than 210 days have passed since the filing of
the complaint and the Secretary has not issued a final decision. The
plain language of 15 U.S.C. 2087(b)(4), by distinguishing between
actions that can be brought if the Secretary has not issued a "final
decision" within 210 days and actions that can be brought within 90
days after a "written determination," supports allowing de novo
actions in district court under either of the circumstances described
above.
However, it is the Secretary's position that complainants may not
initiate an action in federal court after the Secretary issues a final
decision, even if the date of the final decision is more than 210 days
after the filing of the complaint or within 90 days of the
complainant's receipt of the Assistant Secretary's written findings.
The purpose of the "kick-out" provision is to aid the complainant in
receiving a prompt decision. That goal is not implicated in a situation
where the complainant already has received a final decision from the
Secretary. In addition, permitting the complainant to file a new case
in district court in such circumstances could conflict with the
parties' rights to seek judicial review of the Secretary's final
decision in the court of appeals. See 15 U.S.C. 2087(b)(5)(B)
(providing that an order with respect to which review could have been
obtained in [the court of appeals] shall not be subject to judicial
review in any criminal or other civil proceeding).
Under CPSIA, the Assistant Secretary's written findings become the
final decision of the Secretary, not subject to judicial review, if no
objection is filed within 30 days. 15 U.S.C. 2087(b)(2). Thus, a
complainant may need to file timely objections to the Assistant
Secretary's findings in order to preserve the right to file an action
in district court.
In paragraph (b) of this section, OSHA eliminated the requirement
in the interim final rule that complainants provide the agency 15 days
advance notice before filing a de novo complaint in district court.
Instead, this section now provides that within seven days after filing
a complaint in district court, a complainant must provide a file-
stamped copy of the complaint to the Assistant Secretary, the ALJ, or
the ARB, depending on where the proceeding is pending. A copy of the
district court complaint also must be provided to the OSHA official who
issued the findings and/or preliminary order, the Assistant Secretary,
Occupational Safety and Health Administration, and the U.S. Department
of Labor's Associate Solicitor for Fair Labor Standards. This provision
is necessary to notify the agency that the complainant has opted to
file a complaint in district court. This provision is not a substitute
for the complainant's compliance with the requirements for service of
process of the district court complaint contained in the Federal Rules
of Civil Procedure and the local rules of the district court where the
complaint is filed.
This change responds to NWC's comment that the 15-day advance
notice requirement for filing in suit in district court should be
eliminated because it inhibits complainants' access to federal courts.
OSHA believes that a provision for notifying the agency of the district
court complaint is necessary to avoid unnecessary expenditure of agency
resources once a complainant has decided to remove the complaint to
federal district court. OSHA believes that the revised provision
adequately balances the complainant's interest in ready access to
federal court and the agency's interest in receiving prompt notice that
the complainant no longer wishes to continue with the administrative
proceeding.
Section 1983.115 Special Circumstances; Waiver of Rules
This section provides that in circumstances not contemplated by
these rules or for good cause the ALJ or the ARB may, upon application
and notice to the parties, waive any rule as justice or the
administration of CPSIA requires. No comments were received on this
section and no changes have been made to it.
IV. Paperwork Reduction Act
This rule contains a reporting provision (filing a retaliation
complaint, Sec. 1983.103) which was previously reviewed and approved
for use by the Office of Management and Budget (OMB), under the
provisions of the Paperwork Reduction Act of 1995, Public Law 104-13,
109 Stat. 163 (1995). The assigned OMB control number is 1218-0236.
V. Administrative Procedure Act
This is a rule of agency procedure and practice within the meaning
of section 553 of the Administrative Procedure Act (APA), 5 U.S.C.
553(b)(A). Therefore, publication in the Federal Register of a notice
of proposed rulemaking and request for comments was not required for
these regulations, which provide procedures for the handling of
retaliation complaints. The Assistant Secretary, however, sought and
considered comments to enable the agency to improve the rules by taking
into account the concerns of interested persons.
Furthermore, because this rule is procedural rather than
substantive, the normal requirement of 5 U.S.C. 553(d), that a rule be
effective 30 days after publication in the Federal Register, is
inapplicable. The Assistant Secretary also finds good cause to provide
an immediate effective date for this rule. It is in the public interest
that the rule be effective immediately so that parties may know what
procedures are applicable to pending cases.
VI. Executive Orders 12866 and 13563; Unfunded Mandates Reform Act of
1995; Small Business Regulatory Enforcement Fairness Act of 1996;
Executive Order 13132
The Department has concluded that this rule is not a "significant
regulatory action" within the meaning of Executive Order 12866, as
reaffirmed by Executive Order 13563, because it is not likely to result
in a rule that may: (1) Have an annual effect on the economy of $100
million or more or adversely affect in a material way the economy, a
sector of the economy, productivity, competition, jobs, the
environment, public health or safety, or State, local, or Tribal
governments or communities; (2) create a serious inconsistency or
otherwise interfere with an action taken or planned by another agency;
(3) materially alter the budgetary impact of entitlements, grants, user
fees, or loan programs or the rights and obligations of recipients
thereof; or (4) raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
Executive Order 12866. Therefore, no regulatory impact analysis has
been prepared.
Because this rulemaking is procedural in nature it is not expected
to have a significant economic impact; therefore no statement is
required under Section 202 of the Unfunded Mandates Reform Act of 1995.
Furthermore, because this is a rule of agency procedure or practice, it
is not a "rule" within the meaning of the Small Business Regulatory
Enforcement Fairness Act of 1996 (5 U.S.C. 804(3)(C)), and does not
require congressional review. Finally, this rule does not have
"federalism implications." The rule does not have "substantial
direct effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government" and therefore
is not subject to Executive Order 13132 (Federalism).
VII. Regulatory Flexibility Analysis
The Department has determined that the regulation will not have a
significant economic impact on a substantial number of small entities.
The regulation simply implements procedures necessitated by enactment
of CPSIA. Furthermore, no certification to this effect is required and
no regulatory flexibility analysis is required because no proposed rule
has been issued.
VIII. List of Subjects in 29 CFR Part 1983
Administrative practice and procedure, Employment, Consumer
protection, Investigations, Reporting and recordkeeping requirements,
Whistleblower.
Authority and Signature
This document was prepared under the direction and control of David
Michaels, Ph.D., MPH, Assistant Secretary of Labor for Occupational
Safety and Health.
David Michaels,
Assistant Secretary of Labor for Occupational Safety and Health.
Accordingly, for the reasons set out in the preamble, 29 CFR part
1983 is revised to read as follows:
PART 1983--PROCEDURES FOR THE HANDLING OF RETALIATION COMPLAINTS
UNDER SECTION 219 OF THE CONSUMER PRODUCT SAFETY IMPROVEMENT ACT OF
2008
Subpart A--Complaints, Investigations, Findings and Preliminary Orders
Sec.
1983.100 Purpose and scope.
1983.101 Definitions.
1983.102 Obligations and prohibited acts.
1983.103 Filing of retaliation complaint.
1983.104 Investigation.
1983.105 Issuance of findings and preliminary orders.
Subpart B--Litigation
1983.106 Objections to the findings and the preliminary order and
requests for a hearing.
1983.107 Hearings.
1983.108 Role of Federal agencies.
1983.109 Decision and orders of the administrative law judge.
1983.110 Decision and orders of the Administrative Review Board.
Subpart C--Miscellaneous Provisions
1983.111 Withdrawal of complaints, findings, objections, and
petitions for review; settlement.
1983.112 Judicial review.
1983.113 Judicial enforcement.
1983.114 District court jurisdiction of retaliation complaints.
1983.115 Special circumstances; waiver of rules.
Authority: 15 U.S.C. 2087; Secretary's Order 1-2012 (Jan. 18,
2012), 77 FR 3912 (Jan. 25, 2012); Secretary's Order 1-2010 (Jan.
15, 2010), 75 FR 3924 (Jan. 25, 2010).
Subpart A--Complaints, Investigations, Findings and Preliminary
Orders
Sec. 1983.100 Purpose and scope.
(a) This part implements procedures of the employee protection
provisions of the Consumer Product Safety Improvement Act (CPSIA), 15
U.S.C. 2087. CPSIA provides for employee protection from retaliation
because the employee has engaged in protected activity pertaining to
consumer product safety.
(b) This part establishes procedures under CPSIA for the
expeditious handling of retaliation complaints filed by employees, or
by persons acting on their behalf. These rules, together with those
codified at 29 CFR part 18, set forth the procedures under CPSIA for
submission of complaints, investigations, issuance of findings and
preliminary orders, objections to findings and orders, litigation
before administrative law judges (ALJs), post-hearing administrative
review, and withdrawals and settlements.
Sec. 1983.101 Definitions.
As used in this part:
(a) Assistant Secretary means the Assistant Secretary of Labor for
Occupational Safety and Health or the person or persons to whom he or
she delegates authority under CPSIA.
(b) Business days means days other than Saturdays, Sundays, and
Federal holidays.
(c) Commission means the Consumer Product Safety Commission.
(d) Complainant means the employee who filed a CPSIA complaint or
on whose behalf a complaint was filed.
(e)(1) Consumer product means any article, or component part
thereof, produced or distributed:
(i) For sale to a consumer for use in or around a permanent or
temporary household or residence, a school, in recreation, or
otherwise; or
(ii) For the personal use, consumption or enjoyment of a consumer
in or around a permanent or temporary household or residence, a school,
in recreation, or otherwise.
(iii) The term "consumer product" includes any mechanical device
which carries or conveys passengers along, around, or over a fixed or
restricted route or course or within a defined area for the purpose of
giving its passengers amusement, which is customarily controlled or
directed by an individual who is employed for that purpose and who is
not a consumer with respect to such device, and which is not
permanently fixed to a site, but does not include such a device that is
permanently fixed to a site.
(2) The term consumer product does not include:
(i) Any article which is not customarily produced or distributed
for sale to, or use or consumption by, or enjoyment of, a consumer;
(ii) Tobacco and tobacco products;
(iii) Motor vehicles or motor vehicle equipment (as defined by 49
U.S.C. 30102(a)(6) and (7));
(iv) Pesticides (as defined by the Federal Insecticide, Fungicide,
and Rodenticide Act (7 U.S.C. 136 et seq.));
(v) Any article or any component of any such article which, if sold
by the manufacturer, producer, or importer, would be subject to the tax
imposed by 26 U.S.C. 4181;
(vi) Aircraft, aircraft engines, propellers, or appliances (as
defined in 49 U.S.C. 40102(a));
(vii) Boats which could be subjected to safety regulation under 46
U.S.C. chapter 43; vessels, and appurtenances to vessels (other than
such boats), which could be subjected to safety regulation under title
52 of the Revised Statutes or other marine safety statutes administered
by the department in which the Coast Guard is operating; and equipment
(including associated equipment, as defined in 46 U.S.C. 2101(1)), to
the extent that a risk of injury associated with the use of such
equipment on boats or vessels could be eliminated or reduced by actions
taken under any statute referred to in this definitional section;
(viii) Drugs, devices, or cosmetics (as such terms are defined in
21 U.S.C. 321(g), (h), and (i)); or
(ix) Food (the term "food" means all "food," as defined in 21
U.S.C. 321(f), including poultry and poultry products (as defined in 21
U.S.C. 453(e) and (f)), meat, meat food products (as defined in 21
U.S.C. 601(j)), and eggs and egg products (as defined in 21 U.S.C.
1033)).
(f) CPSIA means Section 219 of the Consumer Product Safety
Improvement Act of 2008, Public Law 110-314, 122 Stat. 3016 (Aug. 14,
2008) (codified at 15 U.S.C. 2087).
(g) Distributor means a person to whom a consumer product is
delivered or sold for purposes of distribution in commerce, except that
such term does not include a manufacturer or retailer of such product.
(h) Employee means an individual presently or formerly working for,
an individual applying to work for, or an individual whose employment
could be affected by a manufacturer, private labeler, distributor, or
retailer.
(i) Manufacturer means any person who manufactures or imports a
consumer product. A product is manufactured if it is manufactured,
produced, or assembled.
(j) OSHA means the Occupational Safety and Health Administration of
the United States Department of Labor.
(k) Private labeler means an owner of a brand or trademark on the
label of a consumer product which bears a private label. A consumer
product bears a private label if:
(1) The product (or its container) is labeled with the brand or
trademark of a person other than a manufacturer of the product,
(2) The person with whose brand or trademark the product (or
container) is labeled has authorized or caused the product to be so
labeled, and
(3) The brand or trademark of a manufacturer of such product does
not appear on such label.
(l) Retailer means a person to whom a consumer product is delivered
or sold for purposes of sale or distribution by such person to a
consumer.
(m) Respondent means the employer named in the complaint who is
alleged to have violated CPSIA.
(n) Secretary means the Secretary of Labor or person to whom
authority under CPSIA has been delegated.
(o) Any future statutory amendments that affect the definition of a
term or terms listed in this section will apply in lieu of the
definition stated herein.
Sec. 1983.102 Obligations and prohibited acts.
(a) No manufacturer, private labeler, distributor, or retailer may
discharge or otherwise retaliate against, including, but not limited
to, intimidating, threatening, restraining, coercing, blacklisting or
disciplining, any employee with respect to the employee's compensation,
terms, conditions, or privileges of employment because the employee,
whether at the employee's initiative or in the ordinary course of the
employee's duties (or any person acting pursuant to a request of the
employee), engaged in any of the activities specified in paragraphs
(b)(1) through (4) of this section.
(b) An employee is protected against retaliation (as described in
paragraph (a) of this section) by a manufacturer, private labeler,
distributor, or retailer because the employee (or any person acting
pursuant to a request of the employee):
(1) Provided, caused to be provided, or is about to provide or
cause to be provided to the employer, the Federal Government, or the
attorney general of a State information relating to any violation of,
or any act or omission the employee reasonably believes to be a
violation of any provision of the Consumer Product Safety Act, as
amended by CPSIA, or any other Act enforced by the Commission, or any
order, rule, regulation, standard, or ban under any such Acts;
(2) Testified or is about to testify in a proceeding concerning
such violation;
(3) Assisted or participated or is about to assist or participate
in such a proceeding; or
(4) Objected to, or refused to participate in, any activity,
policy, practice, or assigned task that the employee (or other such
person) reasonably believed to be in violation of any provision of the
Consumer Product Safety Act, as amended by CPSIA, or any other Act
enforced by the Commission, or any order, rule, regulation, standard, or ban under any
such Acts.
(c) This part shall have no application with respect to an employee
of a manufacturer, private labeler, distributor, or retailer who,
acting without direction from such manufacturer, private labeler,
distributor, or retailer (or such person's agent), deliberately causes
a violation of any requirement relating to any violation or alleged
violation of any order, regulation, or consumer product safety standard
under the Consumer Product Safety Act, as amended by CPSIA, or any
other law enforced by the Commission.
Sec. 1983.103 Filing of retaliation complaint.
(a) Who may file. An employee who believes that he or she has been
retaliated against by a manufacturer, private labeler, distributor, or
retailer in violation of CPSIA may file, or have filed by any person on
the employee's behalf, a complaint alleging such retaliation.
(b) Nature of filing. No particular form of complaint is required.
A complaint may be filed orally or in writing. Oral complaints will be
reduced to writing by OSHA. If the complainant is unable to file the
complaint in English, OSHA will accept the complaint in any language.
(c) Place of filing. The complaint should be filed with the OSHA
office responsible for enforcement activities in the geographical area
where the employee resides or was employed, but may be filed with any
OSHA officer or employee. Addresses and telephone numbers for these
officials are set forth in local directories and at the following
Internet address: http://www.osha.gov.
(d) Time for filing. Within 180 days after an alleged violation of
CPSIA occurs, any employee who believes that he or she has been
retaliated against in violation of CPSIA may file, or have filed by any
person on the employee's behalf, a complaint alleging such retaliation.
The date of the postmark, facsimile transmittal, electronic
communication transmittal, telephone call, hand-delivery, delivery to a
third-party commercial carrier, or in-person filing at an OSHA office
will be considered the date of filing. The time for filing a complaint
may be tolled for reasons warranted by applicable case law.
Sec. 1983.104 Investigation.
(a) Upon receipt of a complaint in the investigating office, the
Assistant Secretary will notify the respondent of the filing of the
complaint, of the allegations contained in the complaint, and of the
substance of the evidence supporting the complaint. Such materials will
be redacted, if necessary, in accordance with the Privacy Act of 1974,
5 U.S.C. 552a, and other applicable confidentiality laws. The Assistant
Secretary will also notify the respondent of its rights under
paragraphs (b) and (f) of this section and Sec. 1983.110(e). The
Assistant Secretary will provide an unredacted copy of these same
materials to the complainant (or the complainant's legal counsel if
complainant is represented by counsel), and to the Consumer Product
Safety Commission.
(b) Within 20 days of receipt of the notice of the filing of the
complaint provided under paragraph (a) of this section, the respondent
and the complainant each may submit to the Assistant Secretary a
written statement and any affidavits or documents substantiating its
position. Within the same 20 days, the respondent and the complainant
each may request a meeting with the Assistant Secretary to present its
position.
(c) Throughout the investigation, the agency will provide to the
complainant (or the complainant's legal counsel if complainant is
represented by counsel) a copy of all of respondent's submissions to
the agency that are responsive to the complainant's whistleblower
complaint. Before providing such materials to the complainant, the
agency will redact them, if necessary, in accordance with the Privacy
Act of 1974, 5 U.S.C. 552a, and other applicable confidentiality laws.
The agency will also provide the complainant with an opportunity to
respond to such submissions.
(d) Investigations will be conducted in a manner that protects the
confidentiality of any person who provides information on a
confidential basis, other than the complainant, in accordance with part
70 of this title.
(e)(1) A complaint will be dismissed unless the complainant has
made a prima facie showing that protected activity was a contributing
factor in the adverse action alleged in the complaint.
(2) The complaint, supplemented as appropriate by interviews of the
complainant, must allege the existence of facts and evidence to make a
prima facie showing as follows:
(i) The employee engaged in a protected activity;
(ii) The respondent knew or suspected that the employee engaged in
the protected activity;
(iii) The employee suffered an adverse action; and
(iv) The circumstances were sufficient to raise the inference that
the protected activity was a contributing factor in the adverse action.
(3) For purposes of determining whether to investigate, the
complainant will be considered to have met the required burden if the
complaint on its face, supplemented as appropriate through interviews
of the complainant, alleges the existence of facts and either direct or
circumstantial evidence to meet the required showing, i.e., to give
rise to an inference that the respondent knew or suspected that the
employee engaged in protected activity and that the protected activity
was a contributing factor in the adverse action. The burden may be
satisfied, for example, if the complaint shows that the adverse action
took place shortly after the protected activity, giving rise to the
inference that it was a contributing factor in the adverse action. If
the required showing has not been made, the complainant (or the
complainant's legal counsel if complainant is represented by counsel)
will be so notified and the investigation will not commence.
(4) Notwithstanding a finding that a complainant has made a prima
facie showing, as required by this section, an investigation of the
complaint will not be conducted or will be discontinued if the
respondent demonstrates by clear and convincing evidence that it would
have taken the same adverse action in the absence of the complainant's
protected activity.
(5) If the respondent fails to make a timely response or fails to
satisfy the burden set forth in the prior paragraph, the Assistant
Secretary will proceed with the investigation. The investigation will
proceed whenever it is necessary or appropriate to confirm or verify
the information provided by the respondent.
(f) Prior to the issuance of findings and a preliminary order as
provided for in Sec. 1983.105, if the Assistant Secretary has
reasonable cause, on the basis of information gathered under the
procedures of this part, to believe that the respondent has violated
CPSIA and that preliminary reinstatement is warranted, the Assistant
Secretary will again contact the respondent (or the respondent's legal
counsel if respondent is represented by counsel) to give notice of the
substance of the relevant evidence supporting the complainant's
allegations as developed during the course of the investigation. This
evidence includes any witness statements, which will be redacted to
protect the identity of confidential informants where statements were
given in confidence; if the statements cannot
be redacted without revealing the identity of confidential informants,
summaries of their contents will be provided. The complainant will also
receive a copy of the materials that must be provided to the respondent
under this paragraph. Before providing such materials to the
complainant, the agency will redact them, if necessary, in accordance
with the Privacy Act of 1974, 5 U.S.C. 552a, and other applicable
confidentiality laws. The respondent will be given the opportunity to
submit a written response, to meet with the investigators, to present
statements from witnesses in support of its position, and to present
legal and factual arguments. The respondent must present this evidence
within 10 business days of the Assistant Secretary's notification
pursuant to this paragraph, or as soon thereafter as the Assistant
Secretary and the respondent can agree, if the interests of justice so
require.
Sec. 1983.105 Issuance of findings and preliminary orders.
(a) After considering all the relevant information collected during
the investigation, the Assistant Secretary will issue, within 60 days
of the filing of the complaint, written findings as to whether or not
there is reasonable cause to believe that the respondent has retaliated
against the complainant in violation of CPSIA.
(1) If the Assistant Secretary concludes that there is reasonable
cause to believe that a violation has occurred, the Assistant Secretary
will accompany the findings with a preliminary order providing relief
to the complainant. The preliminary order will require, where
appropriate: affirmative action to abate the violation; reinstatement
of the complainant to his or her former position, together with the
compensation (including back pay and interest), terms, conditions and
privileges of the complainant's employment; and payment of compensatory
damages, including, at the request of the complainant, the aggregate
amount of all costs and expenses (including attorney's and expert
witness fees) reasonably incurred. Interest on back pay will be
calculated using the interest rate applicable to underpayment of taxes
under 26 U.S.C. 6621 and will be compounded daily.
(2) If the Assistant Secretary concludes that a violation has not
occurred, the Assistant Secretary will notify the parties of that
finding.
(b) The findings and, where appropriate, the preliminary order will
be sent by certified mail, return receipt requested, to all parties of
record (and each party's legal counsel if the party is represented by
counsel). The findings and, where appropriate, the preliminary order
will inform the parties of the right to object to the findings and/or
order and to request a hearing, and of the right of the respondent to
request an award of attorney's fees not exceeding $1,000 from the ALJ,
regardless of whether the respondent has filed objections, if the
respondent alleges that the complaint was frivolous or brought in bad
faith. The findings and, where appropriate, the preliminary order also
will give the address of the Chief Administrative Law Judge, U.S.
Department of Labor. At the same time, the Assistant Secretary will
file with the Chief Administrative Law Judge a copy of the original
complaint and a copy of the findings and/or order.
(c) The findings and any preliminary order will be effective 30
days after receipt by the respondent (or the respondent's legal counsel
if the respondent is represented by counsel), or on the compliance date
set forth in the preliminary order, whichever is later, unless an
objection and/or a request for hearing has been timely filed as
provided at Sec. 1983.106. However, the portion of any preliminary
order requiring reinstatement will be effective immediately upon the
respondent's receipt of the findings and the preliminary order,
regardless of any objections to the findings and/or the order.
Subpart B--Litigation
Sec. 1983.106 Objections to the findings and the preliminary order
and requests for a hearing.
(a) Any party who desires review, including judicial review, of the
findings and/or preliminary order, or a respondent alleging that the
complaint was frivolous or brought in bad faith who seeks an award of
attorney's fees under CPSIA, must file any objections and/or a request
for a hearing on the record within 30 days of receipt of the findings
and preliminary order pursuant to Sec. 1983.105. The objections,
request for a hearing, and/or request for attorney's fees must be in
writing and state whether the objections are to the findings, the
preliminary order, and/or whether there should be an award of
attorney's fees. The date of the postmark, facsimile transmittal, or
electronic communication transmittal is considered the date of filing;
if the objection is filed in person, by hand-delivery or other means,
the objection is filed upon receipt. Objections must be filed with the
Chief Administrative Law Judge, U.S. Department of Labor, and copies of
the objections must be mailed at the same time to the other parties of
record, the OSHA official who issued the findings and order, the
Assistant Secretary, and the Associate Solicitor, Division of Fair
Labor Standards, U.S. Department of Labor.
(b) If a timely objection is filed, all provisions of the
preliminary order will be stayed, except for the portion requiring
preliminary reinstatement, which will not be automatically stayed. The
portion of the preliminary order requiring reinstatement will be
effective immediately upon the respondent's receipt of the findings and
preliminary order, regardless of any objections to the order. The
respondent may file a motion with the Office of Administrative Law
Judges for a stay of the Assistant Secretary's preliminary order of
reinstatement, which shall be granted only based on exceptional
circumstances. If no timely objection is filed with respect to either
the findings or the preliminary order, the findings and/or the
preliminary order will become the final decision of the Secretary, not
subject to judicial review.
Sec. 1983.107 Hearings.
(a) Except as provided in this part, proceedings will be conducted
in accordance with the rules of practice and procedure for
administrative hearings before the Office of Administrative Law Judges,
codified at subpart A of part 18 of this title.
(b) Upon receipt of an objection and request for hearing, the Chief
Administrative Law Judge will promptly assign the case to an ALJ who
will notify the parties, by certified mail, of the day, time, and place
of hearing. The hearing is to commence expeditiously, except upon a
showing of good cause or unless otherwise agreed to by the parties.
Hearings will be conducted de novo on the record. ALJs have broad
discretion to limit discovery in order to expedite the hearing.
(c) If both the complainant and the respondent object to the
findings and/or order, the objections will be consolidated and a single
hearing will be conducted.
(d) Formal rules of evidence will not apply, but rules or
principles designed to assure production of the most probative evidence
will be applied. The ALJ may exclude evidence that is immaterial,
irrelevant, or unduly repetitious.
Sec. 1983.108 Role of Federal agencies.
(a)(1) The complainant and the respondent will be parties in every
proceeding and must be served with copies of all documents in the case.
At the Assistant Secretary's discretion, the Assistant Secretary may
participate as a party or as amicus curiae at any time at any stage of
the proceeding. This right to participate includes, but is not limited
to, the right to petition for review of a decision of an ALJ, including
a decision approving or rejecting a settlement agreement between the
complainant and the respondent.
(2) Copies of documents must be sent to the Assistant Secretary and
to the Associate Solicitor, Division of Fair Labor Standards, U.S.
Department of Labor, only upon request of the Assistant Secretary, or
where the Assistant Secretary is participating in the proceeding, or
where service on the Assistant Secretary and the Associate Solicitor is
otherwise required by these rules.
(b) The Consumer Product Safety Commission, if interested in a
proceeding, may participate as amicus curiae at any time in the
proceeding, at the Commission's discretion. At the request of the
Commission, copies of all documents in a case must be sent to the
Commission, whether or not it is participating in the proceeding.
Sec. 1983.109 Decision and orders of the administrative law judge.
(a) The decision of the ALJ will contain appropriate findings,
conclusions, and an order pertaining to the remedies provided in
paragraph (d) of this section, as appropriate. A determination that a
violation has occurred may be made only if the complainant has
demonstrated by a preponderance of the evidence that protected activity
was a contributing factor in the adverse action alleged in the
complaint.
(b) If the complainant has satisfied the burden set forth in the
prior paragraph, relief may not be ordered if the respondent
demonstrates by clear and convincing evidence that it would have taken
the same adverse action in the absence of any protected activity.
(c) Neither the Assistant Secretary's determination to dismiss a
complaint without completing an investigation pursuant to Sec.
1983.104(e) nor the Assistant Secretary's determination to proceed with
an investigation is subject to review by the ALJ, and a complaint may
not be remanded for the completion of an investigation or for
additional findings on the basis that a determination to dismiss was
made in error. Rather, if there otherwise is jurisdiction, the ALJ will
hear the case on the merits or dispose of the matter without a hearing
if the facts and circumstances warrant.
(d)(1) If the ALJ concludes that the respondent has violated the
law, the ALJ will issue an order that will require, where appropriate:
affirmative action to abate the violation; reinstatement of the
complainant to his or her former position, together with the
compensation (including back pay and interest), terms, conditions, and
privileges of the complainant's employment; and payment of compensatory
damages, including, at the request of the complainant, the aggregate
amount of all costs and expenses (including attorney's and expert
witness fees) reasonably incurred. Interest on back pay will be
calculated using the interest rate applicable to underpayment of taxes
under 26 U.S.C. 6621 and will be compounded daily.
(2) If the ALJ determines that the respondent has not violated the
law, an order will be issued denying the complaint. If, upon the
request of the respondent, the ALJ determines that a complaint was
frivolous or was brought in bad faith, the ALJ may award to the
respondent a reasonable attorney's fee, not exceeding $1,000.
(e) The decision will be served upon all parties to the proceeding,
the Assistant Secretary, and the Associate Solicitor, Division of Fair
Labor Standards, U.S. Department of Labor. Any ALJ's decision requiring
reinstatement or lifting an order of reinstatement by the Assistant
Secretary will be effective immediately upon receipt of the decision by
the respondent. All other portions of the ALJ's order will be effective
14 days after the date of the decision unless a timely petition for
review has been filed with the Administrative Review Board (ARB), U.S.
Department of Labor. The decision of the ALJ will become the final
order of the Secretary unless a petition for review is timely filed
with the ARB and the ARB accepts the petition for review.
Sec. 1983.110 Decision and orders of the Administrative Review Board.
(a) Any party desiring to seek review, including judicial review,
of a decision of the ALJ, or a respondent alleging that the complaint
was frivolous or brought in bad faith who seeks an award of attorney's
fees, must file a written petition for review with the ARB, which has
been delegated the authority to act for the Secretary and issue final
decisions under this part. The parties should identify in their
petitions for review the legal conclusions or orders to which they
object, or the objections may be deemed waived. A petition must be
filed within 14 days of the date of the decision of the ALJ. The date
of the postmark, facsimile transmittal, or electronic communication
transmittal will be considered to be the date of filing; if the
petition is filed in person, by hand-delivery or other means, the
petition is considered filed upon receipt. The petition must be served
on all parties and on the Chief Administrative Law Judge at the time it
is filed with the ARB. Copies of the petition for review must be served
on the Assistant Secretary and on the Associate Solicitor, Division of
Fair Labor Standards, U.S. Department of Labor.
(b) If a timely petition for review is filed pursuant to paragraph
(a) of this section, the decision of the ALJ will become the final
order of the Secretary unless the ARB, within 30 days of the filing of
the petition, issues an order notifying the parties that the case has
been accepted for review. If a case is accepted for review, the
decision of the ALJ will be inoperative unless and until the ARB issues
an order adopting the decision, except that any order of reinstatement
will be effective while review is conducted by the ARB, unless the ARB
grants a motion by the respondent to stay that order based on
exceptional circumstances. The ARB will specify the terms under which
any briefs are to be filed. The ARB will review the factual
determinations of the ALJ under the substantial evidence standard. If
no timely petition for review is filed, or the ARB denies review, the
decision of the ALJ will become the final order of the Secretary. If no
timely petition for review is filed, the resulting final order is not
subject to judicial review.
(c) The final decision of the ARB will be issued within 120 days of
the conclusion of the hearing, which will be deemed to be 14 days after
the date of the decision of the ALJ, unless a motion for
reconsideration has been filed with the ALJ in the interim. In such
case, the conclusion of the hearing is the date the motion for
reconsideration is ruled upon or 14 days after a new decision is
issued. The ARB's final decision will be served upon all parties and
the Chief Administrative Law Judge by mail. The final decision will
also be served on the Assistant Secretary and on the Associate
Solicitor, Division of Fair Labor Standards, U.S. Department of Labor,
even if the Assistant Secretary is not a party.
(d) If the ARB concludes that the respondent has violated the law,
the ARB will issue a final order providing relief to the complainant.
The final order will require, where appropriate: affirmative action to
abate the violation; reinstatement of the complainant to his or her former position,
together with the compensation (including back pay and interest),
terms, conditions, and privileges of the complainant's employment; and
payment of compensatory damages, including, at the request of the
complainant, the aggregate amount of all costs and expenses (including
attorney's and expert witness fees) reasonably incurred. Interest on
back pay will be calculated using the interest rate applicable to
underpayment of taxes under 26 U.S.C. 6621 and will be compounded
daily.
(e) If the ARB determines that the respondent has not violated the
law, an order will be issued denying the complaint. If, upon the
request of the respondent, the ARB determines that a complaint was
frivolous or was brought in bad faith, the ARB may award to the
respondent a reasonable attorney's fee, not exceeding $1,000.
Subpart C--Miscellaneous Provisions
Sec. 1983.111 Withdrawal of complaints, findings, objections, and
petitions for review; settlement.
(a) At any time prior to the filing of objections to the Assistant
Secretary's findings and/or preliminary order, a complainant may
withdraw his or her complaint by notifying the Assistant Secretary,
orally or in writing, of his or her withdrawal. The Assistant Secretary
then will confirm in writing the complainant's desire to withdraw and
determine whether to approve the withdrawal. The Assistant Secretary
will notify the parties (and each party's legal counsel if the party is
represented by counsel) of the approval of any withdrawal. If the
complaint is withdrawn because of settlement, the settlement must be
submitted for approval in accordance with paragraph (d) of this
section. A complainant may not withdraw his or her complaint after the
filing of objections to the Assistant Secretary's findings and/or
preliminary order.
(b) The Assistant Secretary may withdraw the findings and/or
preliminary order at any time before the expiration of the 30-day
objection period described in Sec. 1983.106, provided that no
objection has been filed yet, and substitute new findings and/or a new
preliminary order. The date of the receipt of the substituted findings
or order will begin a new 30-day objection period.
(c) At any time before the Assistant Secretary's findings and/or
order become final, a party may withdraw objections to the Assistant
Secretary's findings and/or order by filing a written withdrawal with
the ALJ. If the case is on review with the ARB, a party may withdraw a
petition for review of an ALJ's decision at any time before that
decision becomes final by filing a written withdrawal with the ARB. The
ALJ or the ARB, as the case may be, will determine whether to approve
the withdrawal of the objections or the petition for review. If the ALJ
approves a request to withdraw objections to the Assistant Secretary's
findings and/or order, and there are no other pending objections, the
Assistant Secretary's findings and/or order will become the final order
of the Secretary. If the ARB approves a request to withdraw a petition
for review of an ALJ decision, and there are no other pending petitions
for review of that decision, the ALJ's decision will become the final
order of the Secretary. If objections or a petition for review are
withdrawn because of settlement, the settlement must be submitted for
approval in accordance with paragraph (d) of this section.
(d)(1) Investigative settlements. At any time after the filing of a
complaint, and before the findings and/or order are objected to or
become a final order by operation of law, the case may be settled if
the Assistant Secretary, the complainant, and the respondent agree to a
settlement. The Assistant Secretary's approval of a settlement reached
by the respondent and the complainant demonstrates the Assistant
Secretary's consent and achieves the consent of all three parties.
(2) Adjudicatory settlements. At any time after the filing of
objections to the Assistant Secretary's findings and/or order, the case
may be settled if the participating parties agree to a settlement and
the settlement is approved by the ALJ if the case is before the ALJ, or
by the ARB if the ARB has accepted the case for review. A copy of the
settlement will be filed with the ALJ or the ARB, as the case may be.
(e) Any settlement approved by the Assistant Secretary, the ALJ, or
the ARB will constitute the final order of the Secretary and may be
enforced in United States district court pursuant to Sec. 1983.113.
Sec. 1983.112 Judicial review.
(a) Within 60 days after the issuance of a final order under
Sec. Sec. 1983.109 and 1983.110, any person adversely affected or
aggrieved by the order may file a petition for review of the order in
the United States Court of Appeals for the circuit in which the
violation allegedly occurred or the circuit in which the complainant
resided on the date of the violation.
(b) A final order is not subject to judicial review in any criminal
or other civil proceeding.
(c) If a timely petition for review is filed, the record of a case,
including the record of proceedings before the ALJ, will be transmitted
by the ARB or the ALJ, as the case may be, to the appropriate court
pursuant to the Federal Rules of Appellate Procedure and the local
rules of such court.
Sec. 1983.113 Judicial enforcement.
Whenever any person has failed to comply with a preliminary order
of reinstatement, or a final order, including one approving a
settlement agreement, issued under CPSIA, the Secretary or a person on
whose behalf the order was issued may file a civil action seeking
enforcement of the order in the United States district court for the
district in which the violation was found to have occurred. The
Secretary also may file a civil action seeking enforcement of the order
in the United States district court for the District of Columbia. In
civil actions under this section, the district court will have
jurisdiction to grant all appropriate relief, including, but not
limited to, injunctive relief and compensatory damages, including:
(a) Reinstatement with the same seniority status that the employee
would have had, but for the discharge or retaliation;
(b) The amount of back pay, with interest; and
(c) Compensation for any special damages sustained as a result of
the discharge or retaliation, including litigation costs, expert
witness fees, and reasonable attorney's fees.
Sec. 1983.114 District court jurisdiction of retaliation complaints.
(a) The complainant may bring an action at law or equity for de
novo review in the appropriate district court of the United States,
which will have jurisdiction over such an action without regard to the
amount in controversy, either:
(1) Within 90 days after receiving a written determination under
Sec. 1983.105(a) provided that there has been no final decision of the
Secretary; or
(2) If there has been no final decision of the Secretary within 210
days of the filing of the complaint.
(3) At the request of either party, the action shall be tried by
the court with a jury.
(b) Within seven days after filing a complaint in federal court, a
complainant must file with the Assistant Secretary, the ALJ, or the
ARB, depending on where the proceeding is pending, a copy of the
file-stamped complaint. A copy of the complaint
also must be served on the OSHA official who issued the findings and/or
preliminary order, the Assistant Secretary, and the Associate
Solicitor, Division of Fair Labor Standards, U.S. Department of Labor.
Sec. 1983.115 Special circumstances; waiver of rules.
In special circumstances not contemplated by the provisions of
these rules, or for good cause shown, the ALJ or the ARB on review may,
upon application, after three days notice to all parties, waive any
rule or issue such orders that justice or the administration of CPSIA
requires.
[FR Doc. 2012-16411 Filed 7-9-12; 8:45 am]
BILLING CODE 4510-26-P

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